Trump’s appointees are turning the Supreme Court to the right with different tactics

By CNN Newsource

Published July 26, 2021 3:02 AM

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

The three appointees of former President Donald Trump have together sealed the Supreme Court’s conservatism for a generation, but they have revealed strikingly different methods. They diverge in their regard for practical consequences, their desire to lay down markers for future disputes and their show of internal rivalries.

Neil Gorsuch takes no prisoners. Brett Kavanaugh tries to appear conciliatory, even as he provokes internal conflict. And Amy Coney Barrett is holding her fire, for the moment.

Whether their differences intensify or fade will determine the Trump effect on the high court and how fast the law moves rightward regarding abortion rights, gun control, religion and LGBTQ clashes.

Gorsuch appears most impatient for change and readiest to ignore the potential consequences of rulings, saying such concerns rest with Congress and others beyond the court. He is the boldest of the three new justices in urging reconsideration of legal milestones, including on abortion rights and freedom of the press.

Earlier this month, when the court hollowed out a section of the 1965 Voting Rights Act prohibiting race discrimination, Gorsuch went a step further, saying it was still an open question whether political parties, civil rights organizations and other private groups could bring lawsuits to enforce the VRA provision.

Gorsuch also sets himself apart with hard-hitting rhetoric and derision of Chief Justice John Roberts — often a more moderating force among the conservatives — for using tactics that slice cases narrowly. For instance, when Roberts reinterpreted the nature of a religious rights dispute to avoid breaking major ground, Gorsuch said of the opinion: “From start to finish, it is a dizzying series of maneuvers.”

Kavanaugh, for his part, is more apt to highlight practical consequences of the court’s rulings, minimize differences among fellow justices and offer appeasing asides, even as his vote deepens the ideological divide. Last session as he voted against a claim from gay and transgender employees, he added at the end of his opinion, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment … (and) have exhibited extraordinary vision, tenacity, and grit.”

Kavanaugh seeks to display an understanding of litigants’ plight despite rejecting their claims. This year, when he wrote the court’s opinion against a juvenile murderer challenging his sentence of life without parole, Kavanaugh observed that the convict “contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison.”

Barrett has so far sidestepped internal skirmishes and kept a low profile. She opted to write far fewer opinions than her Trump predecessors in their comparable early months. Yet Barrett’s single “concurring” opinion, in a conflict between religious rights and LGBTQ interests, offered a window into her go-slow approach. She said the court should wait to overturn a precedent covering government regulations that impinge the free exercise of religion until it had a workable substitute.

More importantly, her appointment, succeeding the late liberal Justice Ruth Bader Ginsburg, changed the outcome of challenges brought by religious believers to state Covid-19 restrictions. Barrett cast the key fifth vote in cases from churches and synagogues objecting to state Covid-19 precautions that limited in-person worship services.

Overall, the three Trump appointees voted together with fellow conservatives (Roberts, Clarence Thomas and Samuel Alito) in the most consequential cases of the 2020-21 session.

They curtailed the reach of the Voting Rights Act, threatened the ability of states to impose disclosure requirements on political donors and strengthened property rights in the face of government regulation. That last dispute, from California, arose from union organizers’ efforts to temporarily enter agricultural property to talk to migrant farmworkers.

But as the three went their individual ways, Gorsuch agreed more with far-right conservatives Thomas and Alito, while Kavanagh and Barrett aligned more with Roberts at the center-right of this nine-member bench.

Overall in the recently completed session, Gorsuch agreed most with Thomas, 73% in full and 87% in part, according to SCOTUSblog annual statistics. Meanwhile, Kavanaugh and Barrett had one of the highest rates of agreement in cases: 75% in full and 91% in part.

Trump has touted his influence on the federal judiciary as one of his greatest achievements in office. That impact will swell as his appointees across the judiciary — especially on the high court — gain seniority and further shape the law with their opinions.

Gorsuch’s textualism and taunting

Gorsuch, who joined the bench in April 2017, has the clearest record of the three. He is known for his textualist approach, which relies on the words of a statute rather than legislative history and other societal context. Gorsuch also has argued most vigorously for greater presidential authority and control over regulatory agencies.

Now age 53, the Denver native split his youth between Colorado and Washington, where his mother, Anne Gorsuch Burford, was administrator of the Environmental Protection Agency from 1981 to 1983.

Prolific with his opinions, Gorsuch has staked out positions for future cases, for example, urging reconsideration of abortion rights jurisprudence. (The justices recently agreed to take up a Mississippi ban on abortions after 15 weeks of pregnancy.)

In 2020, when the majority narrowly invalidated a Louisiana regulation on physicians who perform abortions, Gorsuch wrote, “To arrive at today’s result, rules must be brushed aside and shortcuts taken. … (W)e have lost our way.”

Gorsuch often rejects a focus on the practical consequences of a decision, saying the justices should leave the fallout to Congress. That was seen in a dispute over the top structure of the Federal Housing Finance Agency. Gorsuch’s view of a remedy for the unconstitutionally flawed structure would have threatened an Federal Housing Financing Association agreement involving billions of dollars made after the 2008 housing crisis with the Treasury Department and mortgage financiers Fannie Mae and Freddie Mac.

Since he joined the court, Gorsuch has tangled with Roberts on matters small and large, including how much to flex the court’s new conservative muscle. When Roberts, a 2005 appointee of George W. Bush, seeks a fifth vote for a compromise at the center of the court, he is more likely to get it from Kavanaugh than Gorsuch. That was seen in last month’s order keeping in place a Centers for Disease Control eviction moratorium because of the Covid pandemic.

Gorsuch has a way of taunting Chief Justice Roberts into a response on cases.

When Roberts wrote an opinion reviving a New Mexico woman’s claim of excessive force against police, Gorsuch complained that he had opted to “repurpose” legal precedent because of “new policing realities” and “to make life easier for ourselves.” Roberts countered that the majority’s rationale was sound and, “There is no call for such surmise.”

Gorsuch faced off last session with Kavanaugh when Gorsuch wrote a majority opinion favoring an immigrant fighting deportation, based on the text of a statute. Dissenting, Kavanaugh said Gorsuch’s reading of the disputed law would “impose substantial costs and burdens on the immigration system.”

Rejoined Gorsuch, “[T]hat kind of raw consequentialist calculation plays no role in our decision.”

Kavanaugh’s dual tracks

Kavanaugh, 56, grew up just outside of Washington, DC, in suburban Maryland. Favoring sports metaphors, he has said he aspires to be part of a “team of nine.” In his opinions, the 2018 appointee who narrowly survived a brutal confirmation battle tries to accentuate where the justices agree, even as they divide into familiar 6-3 ideological patterns.

He also has advocated incremental steps in high-profile cases. Last year, he wanted to send the Louisiana abortion dispute back to lower courts for additional fact-finding and avoid a larger abortion-rights decision. Kavanaugh has, however, consistently voted to pare down women’s reproductive rights.

Two criminal law decisions he authored in the recent term produced antagonistic exchanges with his liberal colleagues.

His opinion enhancing the ability of states to lock up juvenile offenders for life without parole prompted Sonia Sotomayor to protest that he was mischaracterizing prior cases involving juveniles. (Earlier cases said life in prison should be given only rarely to offenders under age 18, those whose crimes reflect “irreparable corruption.”)

She noted that Kavanaugh had written that his decision for the majority “carefully follows” those precedents, and she added “The Court is fooling no one. … I cannot countenance the Court’s abandonment of” two prior cases.

Kavanagh responded, “We simply have a good-faith disagreement …. That kind of debate over how to interpret relevant precedents is commonplace.”

He took the lead for the court in a separate dispute over whether a 2020 decision forbidding non-unanimous juries in criminal cases was retroactive. By a 6-3, conservative-liberal, vote the majority said the new rule could not be invoked retroactively by defendants who had already exhausted their appeals.

When Elena Kagan argued in dissent that the unanimity rule was such a watershed that it should be retroactive, Kavanaugh suggested she lacked grounds to criticize because she had dissented from the 2020 decision requiring juror unanimity.

“If the dissent’s view had prevailed in (the 2020 case),” he wrote, “no defendant would ever be entitled to the jury-unanimity right — not on collateral review, not on direct review, and not in the future.”

Kagan said she was following a court principle of respect for precedent in the new case and that Kavanaugh was wrongly considering cases in the aggregate, rather than individually.

Kavanaugh, she said, took an approach that “treats judging as scorekeeping.” He responded that he and the others in the majority had “acted in good faith in deciding the difficult questions.”

Barrett’s first term

In her early months on the bench, Barrett wrote less than colleagues and kept her cards close. The 49-year-old native of New Orleans took her seat in late October, missing the first 10 case arguments of the 2020-21 term. A former Notre Dame law professor, she lived in South Bend, Indiana, for nearly two decades before moving recently to the Washington area.

In some respects, junior justices depend upon senior justices who assign opinions for the court majority and the primary dissent for their public writings. (Barrett ended up with four opinions for the court majority.) But any justice can break off and write separate concurring or dissenting opinions. Barrett did that only once in the cases that were argued before the justices last session.

Her presence was especially consequential, however, as the court acted on emergency requests in pandemic-related disputes. She sided with religious adherents protesting Covid restrictions on churches and synagogues in New York and California. Her vote, the opposite of Ginsburg’s in related disputes, meant that the religious objectors prevailed over the state officials.

In one dispute from California, however, Barrett hedged. She signed the court’s decision lifting capacity limits on indoor worship services, but she voted to keep in place a ban on singing. She said it was not clear whether the singing ban applied across the board.

“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral,” she wrote, joined only by Kavanaugh in that part of the case. (Gorsuch would have reversed the singing ban.)

Barrett’s most revealing separate opinion arose in a dispute between the City of Philadelphia and Catholic Social Services, which objected to a city non-discrimination policy that would have required the agency to screen gay couples to be foster parents.

The Supreme Court ruled for Catholic Social Services but declined to reexamine a controversial 1990 precedent that had been at the heart of the controversy. That 1990 decision from an Oregon case, known as Employment Division v. Smith, dictates that neutral, generally applied laws can be upheld as constitutional even if they infringe on the exercise of religion.

Gorsuch, along with Thomas and Alito, said it was time to abandon the rule that can disadvantage religious believers.

Barrett agreed with some criticisms of the Smith decision but was at a loss for the legal standard to take its place.

“There would be a number of issues to work through if Smith were overruled,” she wrote. “To name a few: Should entities like Catholic Social Services — which is an arm of the Catholic Church — be treated differently than individuals? Should there be a distinction between indirect and direct burdens on religious exercise? What forms of scrutiny should apply? … We need not wrestle with these questions in this case.”

Gorsuch wanted the justices to reconsider the Smith case, and he chided Barrett for casting the effort as so daunting. “We hardly need to ‘wrestle’ today with every conceivable question that might follow from recognizing Smith was wrong. … (T)he Court should overrule it now, set us back on the correct course, and address each case as it comes.”

Barrett declined to respond to Gorsuch in her opinion. She made her point and left it there.

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